X. PRIVATE LAND USE CONTROLS: THE LAW OF SERVITUDES (809-47, 865-892, 892-909) Flashcards
Easement
Grant of an interest in land that entitles a person to use land possessed by another
Is an easement possessory or non-possessory?
non-possessory because the servant estate still owns the land, the burden passes to subsequent owners of the servient land, and the owner of an easement has rights against all successors of the grantor of the easement
Must an easement be in writing?
usually but it can be created by implication or prescription
Affirmative easement
owner of the easement (dominant estate) has the right to go onto the land of another (servient estate) and do some act on the land
negative easement
owner of easement can prevent owner of servient land from doing some act on servant land that might harm neighbor
easement appurtenant
“belonging to”; easement gives owner use of another tract of land
dominant v servient tenement
benefited land is dominant tenement and the burdened land is the servient tenement
Does the law generally prefer easement in gross or easement appurtenant?
Generally, easement appurtenant is preferred by the law because it increases the property value (benefit outweighs burden), whereas easement in gross is personal so burden outweighs benefit (since land value does not capture benefit)
Easement in gross
gives owner the right to use the servient land, easement is personal; bc it does not benefit any land, it only involves a servient estate
Profit a Prendre
Right to take something off another person’s land that is part of the land or a product of the land
Is a license an interest in land?
No, therefore it can be either oral or in writing
How can a license become irrevocable?
o License coupled with an interest: A license coupled with an interest that allows the licensee the right to remove property of the licensee which is on the licensor’s land cannot be revoked. (E.g. O sells A a car located on O’s land, A has irrevocable license to enter and remove the car.)
o Estoppel: If licensee has constructed substantial improvements on either the licensor’s land or the licensee’s land, relying on the license, licensor is estopped from revoking the license (see Holbrook v. Taylor)
Ways to create an easement?
- express grant
- reservation
- implication - implied from existing use or easement by necessity
- estoppel - created out of license, transfers right w/o compensation
- prescription - through adverse use
Willard v. First Church of Christ, Scientist
Holding: one can reserve interest to third party, but one cannot accept an interest in favor of third party (Minority view). Court must look balance equitable and policy considerations, which would support looking at the grantor’s intent.
Facts: O intended to convey her property with a reservation of an easement in favor of the church, allowing them to park there on church days. The lower court thwarted this intention, because it invalidated the common law rule that one cannot “reserve” an interest in property in favor of a third party.
Holbrook v. Taylor
always bailing out Taylor
Holding: court holds Taylor(π) has easement by estoppel; Holbrooks cannot revoke license to use the land after Taylor has erected improvements at considerable expense
Facts: In 1942 the Holbrooks purchased their property and in 1944 they gave permission for a road to be cut for the purpose of moving coal from a newly opened mine. The road was used for various purposes until 1965 but always by permission of the Holbrooks. Taylors then used the road during the time their house was built, and made some improvements of the road after Holbrook gave him permission, amounting to $500. The Taylors claimed a right to the roadway by prescription and estoppel.
Van Sandt v. Royster
Sand-sewer
Holding: π should have noticed that there was sewage system under his land that ran to neighboring land; upon reasonable inspection, easement should have been apparent.
(sewer case) π claims easement was never created, and even assuming there was an easement, he was a BFP who had no notice of the easement (wasn’t recorded in the deed), and therefore took the land free from burden of the easement. ∆s claim that easement was created by implied reservation upon severance of servient estate from dominant estate in deed from Bailey to Jones, and there is a valid easement by prescription.
Othen v. Rosier
Othenk gawd I got my license.
In order to create an easement by necessity, the necessity must have existed at the time that the estate was created (held: no necessity at the time the estate was created, so no easement by necessity)
In order to create prescriptive easement, must be continuous and uninterrupted use in satisfaction of statutory requirements of AP (held: no easement by prescription because not used under claim of right)
Held: just a license which could not ripen into prescriptive right
general rule for the scope of easements
intent of the parties defines the scope
Brown v. Voss
BVoss never follows the rules, always takes it easy-easement
Holding: Notwithstanding CL rule, π should be allowed access to nondominant parcel because this will not cause much (or any) hardship to ∆s (Doctrine of balancing equities for an injunction favors this result)
CL rule: Easement appurtenant to one parcel of land may not be extended by owner of dominant estate to other parcels owned by him, to which easement is not also appurtenant; this constitutes a misuse of the land, which would be trespass.
Termination of easements
o Release: easement owner releases the easement; normally release requires writing because easements are interests in property, subject to Statute of Frauds.
o Estoppel: servient owner reasonably relies upon oral statement or representation by easement owner to release him from the easement.
o Expiration: if duration of easement is limited in some way (e.g. defeasible easement is terminated when given event happens; easement by necessity is terminated when necessity ends)
o Merger / Unity of Title: easement owner becomes owner of servient estate.
o Abandonment: mere non-use by easement owner does not constitute abandonment; however if the owner of an easement acts in such a way as to indicate an unequivocal intent to abandon the easement then the easement is abandoned.
o Condemnation: government uses eminent domain power to take easement.
o Alteration of Dominant Tenement: If an easement is granted for a particular person and the alteration makes it impossible to achieve that purpose any longer, the easement is extinguished.
o Prescription: servient owner prevents easement from being used for prescriptive period.
Preseault v. United States
Holding: either abandonment or scope of easement claims constitute a second taking (either by abandonment and then re-taking, or by exceeding scope of original easement and taking of 2nd easement for new use)
Facts: πs claim federal government took their property when it authorized conversion of former railroad right-of-way to public trail use (action amounted to a taking); either scope of easement was exceeded or easements were terminated by abandonment prior to government’s building of public trails (and therefore building of trails constituted a second taking)
negative easements
right of dominant owner to stop servient owner from doing something on the servient land
4 negative easements recognized by England
light, air, subjacent and lateral support, flow of water in artificial stream
Doctrine of Ancient Lights
If a person’s windows had not been blocked by a neighbor for 20 years then he received a prescriptive easement for light over neighbors land.
Are solar easements, scenic easements, and conservation easements recognized as new negative easements?
Yes, in some U.S. jnxs
money damages in ____
law
injunction in ____
equity
real covenant
covenant that runs with the estate in land at law
What type of relief can you get from a real covenant?
money damages
Equitable servitude
covenant that attaches itself to the land and is enforceable at equity (injunction or specific performance)
Can a real covenant arise by prescription or be implied?
NO
requirements for burden to run at law (servient tenement)
intent
horizontal privity
vertical privity
touch and concern
Notice: subsequent purchaser must have notice of the covenant; lack of notice protects only BFP
Requirements for benefit to run at law (dominant tenement)
intent
vertical privity - benefit runs to assignees of any interest in the land
touch and concern
Tulk v. Moxhay
Moxy’s got equity that runs with the land ;)
Holding: Chancellor deemed it inequitable that a covenant should be unenforceable against a subsequent purchaser where the purchaser acquired land with knowledge of the restriction. Chancellor uses equity and says equity runs with the land.
Facts: This is the famous English case in which equitable servitudes originated. Tulk conveyed land to Elmes with covenant prohibiting him and his heirs and assigns from building on it; land eventually was transferred to defendant who had notice of the covenant. Tulk wanted an injunction against Moxhay from building on land, and Moxhay claimed that the covenant does not run with the land (no privity.)
Is equitable or legal relief preferable for covenants?
It is much easier to get equitable relief than legal relief because fewer requirements to show privity of estate; also, plaintiffs would much rather have injunctions (so neighbor can’t build on land); furthermore, damages could exceed value of land (and equitable relief usually says land is maximum value that can be charged)
Can a real covenant or an equitable servitude be implied in equity under certain circumstances?
Unlike a real covenant, an equitable servitude can be implied in equity under certain limited circumstances (usually writing is still required); however it cannot be obtained by prescription!
Sanborn v. McLean
Lean cuisines at the gas station.
Holding: Where a purchaser buys a lot restricted to residential use and relies on the promise of the sub-divider to restrict the other lots and makes a substantial investment, the sub-divider and any other assigns are stopped from pleading the Statute of Frauds
Defendants wish to build a gas station on their lot in a neighborhood, claiming there is no written restriction in their deed and they had no notice of such a restriction; plaintiffs claim defendants’ lot is subject to reciprocal negative easement (really mean servitude) which prohibits this use of land. 53 of 91 deeds have covenants; common owner files plat (map) of subdivision and deeds 10 lots with covenants in 1892 and 11 with covenants in 1893; then deeds lot 86 to someone with no covenant and McLean succeeds to this title.
Termination of Covenants
(1) Release: same as for easements
(2) Acquiescence / Waiver: arises when a claimant has failed to enforce the servitude against other breaches and then seeks to enforce the servitude against the defendant.
(3) Abandonment: resembles acquiescence but it makes the servitude unenforceable as to the entire parcel rather than only as to the plaintiff immediately involved.
(4) Merger: if the benefit and burden come in the hands of one person, the covenant ceases to exist.
(5) Estoppel: same as for easements
(6) “Unclean Hands” defense: court won’t enforce if P also previously violated the covenant.
(7) Changed Conditions: The character of the neighborhood has so changed that it is impossible any longer to secure in substantial decree the benefits of restrictive covenants.
(8) Eminent Domain: Although majority rule is that the government must pay damages to the owner of the benefited land.
Western Land Co. v. Truskolaski
No to WLCo.
Covenants will still be enforced when the original purpose of the covenants can still be accomplished and they are of substantial value to landowners, even if property is more valuable for other purposes.
restricted whole lot to homes, now wants to get out of it with changed circumstances, but not allowed efficient breach! Court gives broad injunction to all benefited parcels basically (NOT damages, although theoretically could have)
Rick v. West
old lady wild wild west
Holding: defendant has right to rely on restrictions; it does not matter that everyone else has waived them or that land would have more value if put to alternative use
original subdivider restricted lots to single-family dwelling; plaintiff now owns property and wishes to sell parcel to hospital (area had been rezoned for industrial use), but defendant refuses to waive covenant; plaintiff claimed covenant was no longer enforceable because conditions had changed.
Regrant theory
An easement reserved by the grantor is not a reservation at all (would be void), but a regrant of an easement by the grantee to the grantor.
Incorporeal hereditaments
a euphonious collective name for certain intangible rights that as the term “hereditament” indicates, descended as a real property to the primogenitary heir.
